In the fight against Covid-19, many businesses have begun to mandate vaccinations for their employees. In fact, President Biden has urged employers to do so. But some employees may object to vaccination on religious grounds. What’s an employer to do?
No federal law prohibits an employer from requiring employees entering their workplace to be vaccinated against Covid-19. However, any such requirement must be implemented fairly and in compliance with federal, state and local laws prohibiting discrimination against certain protected groups.
Title VII of the Civil Rights Act prohibits workplace discrimination against employees based on, among other things, their religion. The law also requires an employer to provide reasonable accommodations for employees’ sincerely held religious beliefs, practices or observances unless providing an accommodation would pose an undue hardship on the operation of the business.
The Equal Employment Opportunity Commission (“EEOC”) enforces workplace anti-discrimination laws, including Title VII of the Civil Rights Act. On October 25, 2021, the EEOC provided updated guidance concerning employees’ religious objections to employer vaccine mandates. The full guidance can be found here.
Accommodating Religious Objections
If a company mandates employee vaccinations and an employee objects on religious grounds, the company must consider whether it can reasonably accommodate the employee’s objection without imposing an undue hardship on the business. Reasonable accommodations to a vaccine mandate could include such things as face-masks, social distancing, modified work-schedules, periodic Covid-19 testing, telework or reassignment.
Once an accommodation has been identified, the employer must determine whether that accommodation would pose an “undue hardship,” meaning it would have more than a minimal cost or burden on the employer. An employer’s burden to prove that a religious accommodation is an “undue hardship” is an easier standard for employers to meet than the Americans with Disabilities Act’s undue hardship standard, which applies to disability accommodation requests.
With respect to religious accommodations and undue hardships, the EEOC’s guidance states the following:
- Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.
- An employer will need to assess undue hardship by considering the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve.
- An employer cannot rely on speculative hardships when faced with an employee’s religious objection but, rather, should rely on objective information.
- Certain common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals).
- Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).
Is it Sincere?
Title VII does not protect social, political, or economic views, or personal preferences. Thus, an employee’s objections to COVID-19 vaccination on those bases would not require an employer to engage in the accommodation process. Some companies may be concerned that employees will disguise their social and political views as religious in order to circumvent the vaccination mandate.
The EEOC advises employers to assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief, unless the employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief. Where such objective basis exists, the employer may request additional supporting information.
Selecting an Accommodation
While an employer must provide reasonable accommodations that will not pose an undue hardship based on religious objections, an employer need not always provide the specific accommodation requested by an employee.
If there is more than one reasonable accommodation that would resolve the conflict between the vaccination mandate and a sincerely held religious belief, the employer may select which accommodation to offer. While an employer should consider the employee’s preference, it is not required to provide the preferred accommodation. For instance, if one accommodation is less costly to the business but would be equally effective, the business may offer that less-costly accommodation instead of what was originally requested.
Implementing a Process
Employers that elect to implement a vaccine mandate should be prepared to deal with employee objections for numerous reasons, including requests for disability and religious accommodations. While each accommodation request must be analyzed based on the particular facts of the situation, businesses should implement a process in advance to receive, review and respond to accommodation requests that is operationally efficient and complies with the law.